04/07/2020 07:31:19 PM By: M. SCO IN THE PHILADELPHIA COUNTY COURT OF COMMON PLEAS CRIMINAL DIVISION Commonwealth of Pennsylvania, Respondent, v. Walter Ogrod, Petitioner. : : : : : : : : : CP-51-CR-0532781-1992 ________________________________________________________________ JOINT AMENDED EMERGENCY MOTION FOR EXPEDITED RULING ON CONCEDED CLAIMS ________________________________________________________________ On March 18, 2020, Mr. Ogrod filed an emergency motion for an expedited ruling on his post-conviction petition where the parties have filed Joint Stipulations of Fact and the Commonwealth has conceded Mr. Ogrod is “likely innocent” and entitled to relief. That motion has yet to be ruled upon by the Court. Mr. Ogrod and the Commonwealth of Pennsylvania jointly file this amended emergency motion for an immediate hearing—by advanced communication technology, such as telephone or video—and ruling on the claims in his Amended PCRA Petition to which the Commonwealth has conceded relief (the “Conceded Claims”). The parties file this amended emergency motion because additional developments since the filing of his original motion increase the urgency for an expedited hearing and ruling. Those developments and changed circumstances include: (1) a recent order from the Pennsylvania Supreme Court urging courts in the first judicial district to take action necessary to assist in reducing the spread of COVID-19 in prison population by identifying prisoners for potential release; (2) a recent order from the Pennsylvania Supreme Court clarifying the expectation that even “non-essential matters” will continue to move forward “at the sound discretion of the President Judge,” and “specifically authorizing and encouraging” courts to use advanced communication technology to conduct court proceedings; (3) a recent declaration from the victim’s mother, Sharon Fahy, indicating she supports the parties’ request to overturn Mr. Ogrod’s conviction and release him from prison as soon as possible; (4) the spread of COVID-19 in SCI Phoenix where Mr. Ogrod is housed; and (5) the fact that Mr. Ogrod has recently been ill, making him even more vulnerable to serious health complications or death if he contracts COVID-19 (presuming he doesn’t already have it). In support of this Joint Motion, Mr. Ogrod and the Commonwealth state as follows: RELEVANT PROCEDURAL AND FACTUAL HISTORY 1. Mr. Ogrod is currently on death row at SCI Phoenix and has been incarcerated since 1992. Mr. Ogrod has been litigating before the Court of Common Pleas in post-conviction status. His initial Amended Petition for Post-Conviction Relief was filed in 2011. 2. In 2018, the Conviction Integrity Unit (CIU) of the Philadelphia District Attorney’s Office agreed to review Mr. Ogrod’s case. The Court continued proceedings in the case on multiple occasions pending the completion of the CIU’s review and investigation. The Court was kept informed of all investigative efforts through the filing of detailed status letters by the CIU on February 19, 2019, July 16, 2019, and January 21, 2020. 3. On January 17, 2020, based on newly uncovered evidence disclosed during the CIU’s investigation of the case – Brady evidence supporting new claims and confirming the claims in Mr. Ogrod’s Amended Petition – Petitioner filed an Amended Consolidated Petition for Post-Conviction Relief. On February 28, 2020, the Commonwealth filed an Answer to Mr. Ogrod’s Amended Petition, conceding relief on two claims (the aforementioned Conceded 2 Claims). On the same date, the parties filed comprehensive Joint Stipulations of Fact pursuant to which the parties stipulated to all facts necessary to grant relief on the Conceded Claims. 4. In its January 21 status letter to the Court, the CIU indicated that it would be filing its answer by the end of February and that it was likely to agree to relief on at least one of Mr. Ogrod’s claims and recommend that Mr. Ogrod’s conviction be vacated. Accordingly, the CIU requested a hearing within a reasonable time (i.e. 30-days from when it anticipated filing its Answer) on what was likely to be conceded claims. This Court subsequently listed Mr. Ogrod’s case for March 27, 2020. However, on or about March 10, 2020, before any court closures as the result of COVID-19, the Court sua sponte cancelled that court date. 5. On March 13, 2020, still prior to any court closures due to the COVID-19 pandemic, the parties participated in a conference call with the Court’s law clerk to discuss the cancelled court date. The parties were informed that Mr. Ogrod’s case would be continued to June 5, 2020 and that the Court most likely could not accommodate an earlier date. The Court’s clerk indicated that the delay was due to the Court’s busy schedule. Specifically, the Court’s clerk explained that the Court already had two matters scheduled for the morning of March 27, 2020 and was not available that afternoon; therefore, the case could not go forward as previously scheduled on that date. As for any other date prior to June 5, 2020, the Court’s clerk indicated that an earlier date was not possible because (a) the Court would not be in session for most of May due to a pre-planned trip abroad; (b) the Court only hears criminal matters on Fridays; and (c) the Court had no available time any other Friday before the trip abroad in May. 6. The parties objected to the delay. In a follow-up letter to the Court sent on March 13 after the telephonic conference with the clerk, Mr. Ogrod’s counsel requested an immediate hearing and indicated that the parties were willing to rest on the pleadings and limit the court 3 proceedings to reading the Joint Stipulations of Fact into the record and five minutes of argument for each side. Counsel for Mr. Ogrod also indicated that Mr. Ogrod would be willing to waive his presence if it meant an earlier hearing could be conducted in the Court’s civil courtroom. 7. On Monday, March 16, the Court’s law clerk sent an email to the parties stating that the Court had reviewed Ogrod’s counsel’s March 13 letter, but that the Court was unable to set a date earlier than June 5, 2020. 1 The email stated: Mr. [Ogrod], his family, the family of the victim, the courts and the public all have a deep interest in seeing the matter move forward. Even so, after considering her full calendar and the equally compelling interests of other defendants and civil litigants whose cases have long been scheduled, she finds that she is unable to set a date earlier than June 5, 2020. 8. In that email, the Court’s clerk also indicated that the Court “does not require additional evidence or argument on the Conceded Claims” other than the Joint Stipulations of Fact and the five minutes of argument to which the parties had agreed. The email also indicated that the Court was unable to say, as of the date of the email, whether a ruling would be issued on June 5, 2020. 9. On March 18, two days after the Court’s clerk sent the email referenced above, the Supreme Court issued its first order closing Pennsylvania courthouses to the public as a result of the COVID-19 pandemic. 10. As Mr. Ogrod’s counsel later came to learn, on March 11, 2020, Mr. Ogrod was taken to the prison infirmary with a fever, cough and difficulty breathing. Mr. Ogrod was immediately placed in isolation where he remained until March 16, 2020, when he was returned to his cell. A few days later, when his condition did not improve, he was returned to isolation. 1 As of this filing, the docket for Mr. Ogrod’s case had yet to be updated to reflect the June 5, 2020 date. 4 11. When counsel became aware of Mr. Ogrod’s ill health, counsel filed two emergency motions on his behalf. The first Emergency Motion for Medical Testing and Treatment, filed on March 18, 2020, was presented to Supervising Judge Leon Tucker, and initially granted but then ultimately denied on jurisdictional grounds. The second Emergency Motion for an Expedited Ruling on the Conceded Claims was also filed with this Court on March 18, 2020 and is still pending. Ostensibly this motion has not been ruled upon because the Court did not think it could act in light of then-existing orders from the Supreme Court and local judicial leadership. 2 RECENT CHANGED CIRCUMSTANCES AND ARGUMENT 12. Since the filing of his Emergency Motion for Ruling on the Conceded Claims, the Supreme Court has issued orders that amend previous orders and are relevant to this matter, conditions at SCI-Phoenix with respect to the COVID-19 pandemic have worsened, and the victim’s mother has executed a declaration in support of relief for Mr. Ogrod. On those bases, Mr. Ogrod files this Amended Motion reiterating his request for an immediate hearing, conducting through advanced communication technology and/or ruling on the Conceded Claims. A. Pennsylvania Supreme Court’s April 1, 2020 Second Supplemental Order 13. On April 1, 2020, the Pennsylvania Supreme Court issued a Second Supplemental Order to its March 18, 2020 Order declaring a statewide judicial emergency as a result of the COVID-19 global pandemic and generally closing Pennsylvania courts to the public. The April 1 order extended the closure of Pennsylvania courts from April 3rd to April 30th and clarified that Pennsylvania courts are now expected to move forward not just on essential/emergency 2 On March 26, 2020, counsel for Mr. Ogrod sent an email to the Court’s clerk inquiring as to the status of the Emergency Motion in light of Mr. Ogrod’s medical issues and conditions at the prison. Counsel has received no response to that email. 5 motions (as per the Supreme Court’s first supplemental order issued on March 18, 2020), but also on non-essential matters “within the sound discretion of the President Judge.” Second Supplemental Order, In re: General Statewide Judicial Emergency, Nos. 531 and 532 Judicial Admin. Dkt. (Pa. April 1, 2020), at 5, attached as Exhibit A. The April 1 order repeatedly authorized and encouraged courts to utilize advanced communication technology, such as telephonic or video conferencing, to conduct court business. Id. at 4-5. The Order provides that, to the extent that matters such as this one “could be handled through advanced communication technology consistent with constitutional limitations, they may and should proceed.” Id. at 5 (emphasis added). B. Pennsylvania Supreme Court Order Denying King’s Bench Petition 14. On April 3, 2020, in response to an Application for Extraordinary Relief filed by the ACLU of Pennsylvania on behalf of the Pennsylvania Prison Society and detained individuals, the Pennsylvania Supreme Court issued an Order in which it acknowledged that “the potential outbreak of COVID-19” in Pennsylvania prisons “poses an undeniable threat to the health of the inmates, the correctional staff and their families, and the surrounding community” and accordingly ordered that “action must be taken to mitigate the potential of a public health crisis.” In Re: The Petition of Pennsylvania Prison Society et al, No. 70 MM 2020 (Pa. April 3, 2020), at 1-2, attached as Exhibit B. In the Order, the Supreme Court directed that, if conditions so warrant, “President Judges should consult with relevant county stakeholders to identify individuals and/or classes of incarcerated persons for potential release,” taking into account the safety and rights of victims and public health concerns. Id. at 3. 6 C. Spread of COVID-19 at SCI Phoenix 15. On March 11, 2020, SCI Phoenix, where Mr. Ogrod is incarcerated, became the first prison in the state to institute limitations on visitation due to the high number of COVID-19 cases in Montgomery County. Since the filing of Mr. Ogrod’s Emergency Motion and according to the Department of Corrections, SCI Phoenix is the only state prison in Pennsylvania where inmates have tested positive for coronavirus. As of April 7, 2020, five inmates and four employees at SCI Phoenix have tested positive for COVID-19. See Coronavirus and the DOC, available at https://www.cor.pa.gov/Pages/COVID-19.aspx (last visited Apr. 6, 2020). This is an increase from four inmates and two employees, reported just the day prior. Given what we know about the ease with which the coronavirus is transmitted and the conditions in prison, which make it nearly impossible to practice safe social distancing, the infection rate within SCI Phoenix will surely increase exponentially. D. Mr. Ogrod is a High Risk Individual. 16. As stated above, Mr. Ogrod has been sick since the second week in March. Presuming he does not already have COVID-19, his ill health puts him at risk if he were to contract it. Mr. Ogrod was twice placed into quarantine and ultimately returned to his cell on March 20, 2020, where he currently remains. While Mr. Ogrod’s fever has subsided, he still reports a cough and congestion. Mr. Ogrod’s counsel have his medical records through March 22, 2020, which reflect that Mr. Ogrod had not been tested for COVID-19 as of that date. Prison medical staff have told Mr. Ogrod that his compromised health puts him at risk. 7 E. Mr. Ogrod Has Proven He Was Wrongfully Convicted and his Release from Prison Would Avoid Further Injustice and Is in the Public Interest 17. The Commonwealth has conceded relief on two of Mr. Ogrod’s claims, asserting his innocence and various Brady and Napue violations. In its Answer, the Commonwealth admitted the following: At trial, Ogrod found himself adrift in a perfect storm of unreliable scientific evidence, prosecutorial misconduct, Brady violations and false testimony. As a result, Ogrod was wrongfully imprisoned for nearly three decades on death row – and all agree that his incarceration constitutes cruel and unusual punishment. Ogrod is likely innocent, and his continued incarceration represents an ongoing miscarriage of justice. The Commonwealth urges this Court to grant Ogrod relief and vacate his conviction and sentence. Commonwealth’s Answer at 35. 18. If the Court were to grant Mr. Ogrod’s PCRA petition on the Conceded Claims and order a new trial, the Commonwealth has indicated it would move to nolle pros the charges against Mr. Ogrod. If that motion were granted, Mr. Ogrod would be released from a prison known to contain inmates and staff who have tested positive for COVID-19. 19. Moreover, if Mr. Ogrod were to be granted relief and released from prison (as all interested parties agree he should be), Mr. Ogrod would reside with his brother Greg Ogrod and Greg’s fiancée Mary Kelly, who are willing to provide for him and keep him quarantined for as long as necessary, consistent with current public health guidelines. F. The Victim’s Family Supports the Parties’ Joint Request to Vacate Mr. Ogrod’s Conviction and Immediately Release Him from Prison 20. Sharon Fahy, Barbara Jean Horn’s mother, supports overturning Mr. Ogrod’s conviction and releasing him from prison. 21. Ms. Fahy, through her attorney, submits the attached declaration outlining her support, which states in part: 8 Since July 12, 1988, the day Barbara Jean was murdered, my goal has always been to make sure whoever murdered my daughter was brought to justice. ... During the review of Mr. Ogrod’s conviction by the Conviction Integrity Unit, I met on numerous occasions with Patricia Cummings and Carrie Wood with my lawyer, Ken Trujillo. ... Based on both my lawyer’s review as well as my own review of the evidence and the investigation into the conviction, I fully supported and continue to support the District Attorney’s conclusion and request to vacate Mr. Ogrod’s conviction. My review of the evidence relied on and cited by the District Attorney’s office was excruciating. I am sad and angry to find out 32 years later that key evidence was withheld from me, my family and the courts. That evidence more than likely would have kept Mr. Ogrod off death row. ... My daughter is never coming home but I wanted justice for her, not simply a closed case with an innocent person in jail. Two families have already been destroyed. There is no question in my mind that Mr. Ogrod is innocent and that he should be released from prison immediately. Keeping Mr. Ogrod in prison does nothing to accomplish my goal of bringing the person that killed my Barbara Jean to justice. Over the past several days I’ve been advised that Mr. Ogrod is ill and has symptoms of COVID-19. I believe Mr. Ogrod should have whatever medical treatment he needs and should be released as soon as possible. The possibility that an innocent man might die in jail would only serve to multiply the pain Barbara Jean’s family has suffered. Declaration of Sharon Fahy, Attached as Exhibit C (emphasis added). 9 22. Ms. Fahy, through her attorney, has indicated that she would be willing to participate in a hearing conducted by telephone or video conference. CONCLUSION 23. The Court has already indicated that it is willing to issue a ruling based upon the Joint Stipulations and after only ten total minutes of argument. Such a hearing could be easily accomplished via telephone or video conferencing technology. Presumably, the prior reasons why the Court was unable to hear this matter prior to June are no longer applicable, including the Court’s scheduled trip abroad in May. 24. All of the factors listed herein, as well as those listed in Mr. Ogrod’s prior emergency motion for an expedited ruling, make it abundantly clear that a ruling on the Conceded Claims is not only warranted given the uncontested evidence before the Court, it is encouraged in light of the COVID-19 pandemic. There is simply no reason to further delay this matter and every reason to rule on the Conceded Claims. All interested parties, including the victim’s family, agree relief is warranted and further incarceration of Mr. Ogrod would be a painful and unnecessary injustice. As this Court has acknowledged, “Mr. [Ogrod], his family, the family of the victim, the courts and the public all have a deep interest in seeing the matter move forward.” WHEREFORE, in light of the unique set of circumstances before this Court, Mr. Ogrod requests that this Court grant this Joint Amended Emergency Motion for Expedited Ruling and: i) schedule a telephonic or video hearing on the earliest possible date available in April, 2020, during which Mr. Ogrod will waive his presence, the victim’s mother Sharon Fahy will be invited to give a statement, the parties will read the Joint Stipulations of Fact into the record, and each side will have five minutes for argument; and ii) issue a ruling at that hearing. 10 In the alternative, if the Court believes this is a matter better addressed by President Judge Fox and/or Court Administration, indicate such in the Court’s Order so counsel can seek relief from the President Judge or Court Administration. Proposed Orders are attached. RESPECTFULLY SUBMITTED: /s/ Andrew J. Gallo Andrew J. Gallo , pro hac vice Robert E. McDonnell, pro hac vice MORGAN, LEWIS & BOCKIUS, LLP One Federal Street Boston, MA 02110 Andrew.gallo@morganlewis.com /s/ James Rollins James S. Rollins, pro hac vice NELSON MULLINS RILEY & SCARBOROUGH LLP One Post Office Square Boston MA 02109 James.Mullins@nelsonnullins.com /s/ Tracy Ulstad Tracy Ulstad (Pa. Bar 87377) Samuel J.B. Angell (Pa. Bar 61239) Loren Stewart (Pa. Bar 311928) Federal Community Defender Office for Eastern District of Pennsylvania Capital Habeas Corpus Unit 601 Walnut Street, Suite 545 West Philadelphia, PA 19106 tracy_ulstad@fd.org Counsel for Petitioner, Walter J. Ogrod /s/ Patricia Cummings Patricia Cummings, Esq. Carrie Wood, Esq. Philadelphia District Attorney’s Office Three South Penn Square Philadelphia, PA 19107 patricia.cummings@phila.gov Counsel for Respondent, Commonwealth of Pennsylvania Dated: April 7, 2020 11 IN THE PHILADELPHIA COUNTY COURT OF COMMON PLEAS CRIMINAL DIVISION Commonwealth of Pennsylvania, Respondent, v. Walter Ogrod, Petitioner. : : : : : : : : : : : CP-51-CR-0532781-1992 [Proposed] ORDER On this ___ day of April, 2020, upon consideration of the Amended Emergency Unopposed Motion By Walter J. Ogrod For Expedited Ruling On Conceded Claims, it is HEREBY ORDERED that said motion is GRANTED. The parties and Court shall confer by April ____, 2020 to make arrangements for the hearing to proceed on April ____, 2020, through appropriate advanced communication technology. By the Court: The Honorable Shelley Robins New IN THE PHILADELPHIA COUNTY COURT OF COMMON PLEAS CRIMINAL DIVISION Commonwealth of Pennsylvania, Respondent, v. Walter Ogrod, Petitioner. : : : : : : : : : : : CP-51-CR-0532781-1992 [Alternate Proposed] ORDER On this ___ day of April, 2020, upon consideration of the Amended Emergency Unopposed Motion By Walter J. Ogrod For Expedited Ruling On Conceded Claims, it is HEREBY ORDERED that said motion is DENIED because the Court believes that the matter can only be listed for a hearing in April by and/or with the authorization of President Judge Idee Fox and/or Court Administration. By the Court: The Honorable Shelley Robins New VERIFICATION The facts set forth in this Motion are true and correct to the best of the undersigned’s personal knowledge, information, and belief and are verified subject to the penalties for unsworn falsification to authorities under Pennsylvania Crimes Code Section 4904 (18 Pa. C.S. § 4904). /s/ Tracy Ulstad Tracy Ulstad April 7, 2020 CERTIFICATE OF SERVICE I, Tracy Ulstad, hereby certify that on this 7th day of April, 2020, I caused the foregoing to be filed through the Court’s electronic filing system and thereby served the following individuals: Patricia Cummings, Esq. Supervisor, Conviction Integrity and Special Investigations Unit Philadelphia District Attorney’s Office Three South Penn Square Philadelphia, PA 19107 patricia.cummings@phila.gov Carrie Wood, Esq. Assistant District Attorney Conviction Integrity Unit Philadelphia District Attorney’s Office Three South Penn Square Philadelphia, PA 19107 carrie.wood@phila.gov /s/ Tracy Ulstad Tracy Ulstad EXHIBIT A IN THE SUPREME COURT OF WESTERN DISTRICT IN RE: GENERAL STATEWIDE Nos. 531 and 532 Judicial JUDICIAL EMERGENCY Administration Docket SECOND SUPPLEMENTAL ORDER PER CURIAM AND NOW, this 1st day of April, 2020, pursuant to Rule of Judicial Administration and the Supreme Court?s constitutionally?conferred general supervisory and administrative authority over all courts and magisterial district judges, see PA. CONST. art. V, this Court DIRECTS that the general, statewide judicial emergency declared in this Court?s Order of March 16, 2020, is EXTENDED through April 30, 2020, and all courts SHALL REMAIN generally CLOSED TO THE PUBLIC through April 30, 2020, subject to the General and Specific Directives and Exceptions set forth in this Court?s Order of March 18, 2020, as modified and supplemented herein. The Court further explains and DIRECTS as follows: On March 16, 2020, in light of the spread of the virus, this Court deemed it necessary to declare a general, statewide judicial emergency to enable the Judiciary to consider -- on a district-by-district basis -- the appropriate measures to be taken to safeguard the health and safety of court personnel, court users, and members of the public. Via separate Order, President Judges of the intermediate appellate courts were afforded authority to implement emergency measures as well. On March 18, 2020, at the behest of Secretary of Health, the Court issued an order directing that all courts are generally closed to the public through at least April 3, 2020, subject to certain General and Specific Directives and Exceptions designed, inter aha, to ensure the continuation of the courts? essential functions consistent with public health guidance provided by the executive branch. On March 24, 2020, the Court issued a Supplemental Order expanding the non-exclusive list of essential functions to include commencement of a civil action, by praecipe for a writ of summons, for purposes of tolling a statute of limitations. Yesterday afternoon, the Secretary of Health urged the Supreme Court to extend the statewide closure of the courts, except for essential services, for a period of approximately one additional month to further restrict the amount of person-to-person contact and mitigate the spread of COVID-19. Accordingly, the temporary, general closure of the courts to the public SHALL REMAIN IN PLACE through April 30, 2020, subject to the General and Speci?c Directives and Exceptions set forth in the March 18 Order, subject to the modi?cations and clarifications set forth below. In addition, President Judges are AUTHORIZED to declare judicial emergencies in their judicial districts through May 31, 2020, or for part of that period, should they deem it appropriate based on local conditions for the protection of the health and safety of court personnel, court users, and others. Such declarations, as well as all local orders and directives, SHALL BE FILED with the Prothonotary for the Supreme Court in [531 532 Judicial Administration Docket - 2] the Eastern, Western, or Middle District Office, as appropriate for the particular local judicial district. For convenience, such materials may be transmitted via electronic mail to: lrene.Bizzoso@pacourts.us. Time Limitations and Deadlines Unless otherwise indicated herein or in the March 18 Order, all time calculations for purposes of time computation relevant to court cases or other judicial business, as well as time deadlines, ARE NOW SUSPENDED through April 30, 2020, subject to additional orders. This suspension SHALL OVERLAP with suspensions already granted by any President Judge, and any longer suspensions directed by an appellate or local court shall remain extant on their own terms. In all events, any legal papers or pleadings which are required to be ?led between March 19, 2020, and April 30, 2020, SHALL BE DEEMED to have been timely filed if they are filed by May 1, 2020, or on a later date as permitted by the appellate or local court in question. Statutes of Limitations This Court?s Order of March 24, 2020, expanding the list of essential functions of courts to include acceptance of a praecfpe for a writ of summons, for purposes of tolling a statute of limitations, SHALL REMAIN IN FULL FORCE AND EFFECT through April 30, 2020. Additionally, if a court of original jurisdiction is closed to filings, the alternative mechanism for ?ling of an emergency praecipe in the Superior Court shall remain in place, as set forth in the March 24, 2020 Order. [531 532 Judicial Administration Docket - 3] Children?s Fast Track Appeals This Court's ?Order Regarding Alternative Filing Procedure for Children?s Fast Track Appeals," dated March 27, 2020, SHALL REMAIN IN FULL FORCE AND EFFECT through at least April 30, 2020. This Order approved the Superior Court's provision for the ?ling of emergency ?ling of children?s fast track appeals upon a certification that filing in the court of original jurisdiction is impractical due to the closure of court facilities. Advanced Communication Technology The Court continues to specifically AUTHORIZE AND ENCOURAGE use of advanced communication technology to conduct court proceedings, subject only to constitutional limitations. Advanced communication technology includes, but is not limited to: systems providing for two-way simultaneous communication of image and sound; closed-circuit television; telephone and facsimile equipment; and electronic mail. See No. 1952(A)(2)(e) comment (citing Rule of Criminal Procedure 103 for the definition of advanced communication technology). Courts of Common Pleas As previously prescribed, any in-person hearings pertaining to essential functions SHALL BE HELD in courtrooms designated by the individual courts of common pleas to minimize person-to-person contact. Per the March 18 Order, unless otherwise required therein, any in-person pretrial conference, case management conference, status conference, diversionary program, discovery motions practice, motions practice or other hearing, whether civil or criminal, were postponed until a future date to be set forth by the courts. The Court further [531 532 Judicial Administration Docket - 4] directed that, to the extent that such matters could be handled through advanced communication technology consistent with constitutional limitations, they may and should proceed. The effect of these directives is now EXTENDED through April 30, 2020, unless a President Judge should direct othenivise upon suf?cient notice. The Court NOW CLARIFIES that it expects that non-essential matters can continue to move forward, within the sound discretion of President Judges, so long as judicial personnel, attorneys, and other individuals can and do act in conformity with orders and guidance issued by the executive branch. Here again, the Court continues to specifically AUTHORIZE AND ENCOURAGE use of advanced communication technology, subject only to constitutional limitations. Jurors SHALL NOT REPORT forjury duty through April 30, 2020. Magisterial District Courts, Philadelphia Municipal Court, Philadelphia Arraignment Court Magistrates and Pittsburgh Municipal Court, Arraignment Division All Magisterial District Courts, Philadelphia Municipal Court, Philadelphia Arraignment Court and Pittsburgh Municipal Court, Arraignment Division, SHALL REMAIN CLOSED TO THE PUBLIC, except for essential functions, and subject to the additional Directives and Exceptions set forth in this Court?s March 18 Order, including modi?cations to the regimen for the acceptance of payments Guidance to Legal Professionals Guidance has been provided by the executive branch explaining that members of the legal profession ?may continue physical operations . . . as required to allow attorneys to participate in court functions deemed essential by a president judge per the Supreme Court's order of March 18, 2020, or similar federal court directive, and lawyers may access their of?ces to effectuate such functions and [531 532 Judicial Administration Docket - 5] directives.? MARCH 24, 2020 -- INDUSTRY OPERATION GUIDANCE, Uploaded by Governor Tom Wolf, (last visited April 1, 2020). Paragraph 13 of the Governor?s Frequently Asked Questions additionally advises that businesses that are otherwise required to suspend in-person operations may ?retain essential personnel to process payroll and insurance claims, maintain security, and engage in similar limited measures on an occasional basis," subject to the caveat that ?telework (Le. working from home) should be employed whenever possible, and social distancing must be observed.? LIFE SUSTAINING BUSINESS FAQS, Uploaded by Governor Tom Wolf, (last visited April 1, 2020). Dispossession of Property Subject to further orders of this Court, the directives contained in the March 18 Order concerning the dispossession of a residence -- under the heading "Landlorleenant" -- are hereby extended through April 30, 2020. It is noted, as a clari?cation, that the intent of this provision is that, in view of the economic effects of the pandemic, during this timeframe no of?cer, of?cial, or other person employed by the Judiciary at any level shall effectuate an eviction, ejectment, or other displacement from a residence based upon the failure to make a monetary payment. Such payments include rent and loan payments, as referenced in the March 18 Order; they also include property tax payments. As such, this temporary prohibition encompasses, inter alia, dispossessions predicated on a mortgage foreclosure, a failure to pay rent, or a failure to pay property taxes. Finally, and again subject to further orders, any execution on an order of possession is also stayed for the same period, namely, through April 30, 2020. [531 532 Judicial Administration Docket - 6] Prompt Trials Extending the prior directive from the March ?18 Order, Rule of Criminal Procedure is hereby SUSPENDED in all judicial districts at least through April 30, 2020. The purport of this directive is that the time period of the statewide judicial emergency and continuing through April 30, 2020, SHALL BE EXCLUDED from the time calculation under Rule Nothing in this Order, however, or its local implementation, shall affect a criminal defendant?s right to a speedy trial under the United States and Constitutions albeit that the circumstances giving rise to this Order and the suspension may be relevant to the constitutional analysis. This Court will continue to post on the Unified Judicial System website its Orders concerning the operations of the Uni?ed Judicial System during the COVID-19 situation. [531 532 Judicial Administration Docket - EXHIBIT IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT IN RE: THE PETITION OF THE PENNSYLVANIA PRISON SOCIETY, BRIAN MCHALE, JEREMY HUNSICKER, CHRISTOPHER AUBRY, MICHAEL FOUNDOS, AND FREDERICK LEONARD, ON BEHALF OF ALL SIMILARLY SITUATED INDIVIDUALS, Petitioners : No. 70 MM 2020 : : : : : : : : ORDER PER CURIAM AND NOW, this 3rd day of April, 2020, the “Application for Extraordinary Relief under the Court’s King’s Bench Jurisdiction,” asking this Court to invoke King’s Bench jurisdiction and direct the President Judges of the Commonwealth to order, inter alia, the immediate presumptive release of specified categories of incarcerated persons to prevent the spread of COVID-19 in the county correctional institutions, is DENIED; nevertheless, pursuant to Rule of Judicial Administration 1952(A) and the Pennsylvania Supreme Court’s constitutionally conferred general supervisory and administrative authority over all courts and magisterial district judges, see PA. CONSt. art V, § 10(a), this Court DIRECTS the President Judges of each judicial district, or their judicial designees, to engage with other county stakeholders to review immediately the current capabilities of the county correctional institutions in their district to address the spread of COVID-19. The Court further explains and DIRECTS as follows: The potential outbreak of COVID-19 in the county correctional institutions of this Commonwealth poses an undeniable threat to the health of the inmates, the correctional staff and their families, and the surrounding communities. Accordingly, action must be taken to mitigate the potential of a public health crisis. We acknowledge that in some of the Commonwealth’s judicial districts, judges, district attorneys, the defense bar, corrections officials, and other stakeholders are currently engaged in a concerted, proactive effort to reduce the transmission of the disease in county correctional institutions and surrounding communities through careful reduction of the institutions’ populations and other preventative measures.1 In light of Petitioners’ allegations that not all judicial districts containing county correctional institutions have so responded, there remains the potential of unnecessary overcrowding in these facilities which must be addressed for the health and welfare of correctional staffs, inmates, medical professionals, as well as the general public. We emphasize, however, that the immediate release of specified categories of incarcerated persons in every county correctional institution, as sought by Petitioners, fails to take into account the potential danger of inmates to victims and the general population, as well as the diversity of situations present within individual institutions and communities, which vary dramatically in size and population density. Nevertheless, we recognize that the public health authorities, including the Centers for Disease Control and Prevention and the Pennsylvania Department of Health, continue to issue guidance on best practices for correctional institutions specifically and congregate settings generally to employ preventative measures, including social distancing, to control the spread of the disease. We DIRECT the President Judges of each judicial district to coordinate with relevant county stakeholders to ensure that the county correctional institutions in their 1 We further acknowledge the efforts of the Pennsylvania Department of Corrections and others to address similar issues in the State Correctional Institutions. [70 MM 2020] - 2 districts address the threat of COVID-19, applying the recommendations of public health officials, including the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020).2 If utilization of public health best practices is not feasible due to the population of the county correctional institutions, President Judges should consult with relevant county stakeholders to identify individuals and/or classes of incarcerated persons for potential release or transfer to reduce the current and future populations of the institutions during this health crisis with careful regard for the safety of victims and their communities in general, with awareness of the statutory rights of victims, and with due consideration given to public health concerns related to inmates who may have contracted COVID-19. Moreover, consistent with these above considerations, President Judges are to undertake efforts to limit the introduction of new inmates into the county prison system. Additionally, the Application for Leave to Intervene, or in the Alternative, Application for Leave to File Amicus Curiae Answer in Opposition to Petitioners’ Extraordinary Jurisdiction Application filed by Marsy’s Law for Pennsylvania, LLC and Kelly Williams is DENIED as to the request to intervene and GRANTED as to the application to file an amicus curiae answer in opposition. Chief Justice Saylor files a Concurring Statement in which Justices Todd, Dougherty and Mundy join. The CDC’s Guidelines are available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html. 2 [70 MM 2020] - 3 IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT IN RE: THE PETITION OF THE PENNSYLVANIA PRISON SOCIETY, BRIAN MCHALE, JEREMY HUNSICKER, CHRISTOPHER AUBRY, MICHAEL FOUNDOS, AND FREDERICK LEONARD, ON BEHALF OF ALL SIMILARLY SITUATED INDIVIDUALS, Petitioners : No. 70 MM 2020 : : : : : : : : CONCURRING STATEMENT CHIEF JUSTICE SAYLOR FILED: April 3, 2020 I join the present Order, since it does not sanction actual releases, but rather, merely requires the identification of qualifying prisoners for potential release. In my view, the primary authority to release qualifying prisoners on account of a disaster emergency rests with the Governor -- who is invested with the power to direct and compel necessary evacuations and control the movements of persons within disaster areas, see 35 Pa.C.S. §7301 -- and/or the General Assembly. Perhaps some releases may be effectuated by the judiciary under existing statutory provisions already sanctioned by the Legislature, such as via the probation and parole authority available under the Sentencing Code. See, e.g., 42 Pa.C.S. §9776. Otherwise, I believe the Governor should fashion an appropriate Executive Order -and/or the General Assembly should enact appropriate legislation -- to secure those releases deemed to be necessary by the Health Department and which are consonant with the preservation of public safety and other relevant factors, such as those delineated in the Court’s present Order. Justices Todd, Dougherty, and Mundy join this concurring statement. [70 MM 2020] - 2 EXHIBIT DECLARATION OF SHARON FAHY I, Sharon ahy, being duly sworn, do hereby declare as follows: . I am the mother of Barbara Jean Horn. . Barbara Jean was my only child and she was born on October 18, 1983. . Since July 12, 1988, the day Barbara Jean was murdered, my goal has always been to make sure whoever murdered my daughter is brought to justice. . So, when Walter Ogrod was arrested for her murder, I tried to follow every development in the case against him. . When Walter Ogrod was arrested all the way through his two trials, it was a difficult time for my husband, John Fahy (Barbara Jean?s stepfather at the time) and me. . Looking'back, everything seemed like a blur. . John Fahy and I were told by detectives that Mr. Ogrod had murdered Barbara Jean and we simply believed them. . I continued to follow the case even after Mr. Ogrod was convicted and sentenced to death. . The District Attorney?s of?ce kept me generally informed of the post- conviction challenges being ?led by Mr. Ogrod?s attorneys. 10. 'As I followed the case, my family and I began to have concerns about whether Mr. Ogrod was the person that killed my Barbara Jean. However, I?remained unsure what to think. 11. Then in 2018, I was noti?ed that the case was being transferred from the PCRA Unit at the District Attorney?s Of?ce to the Conviction Integrity Unit 12. Around that same time, I requested that the District Attorney?s Of?ce not reach out to John Fahy because John and I divorced, and John had our marriage annulled. 13. Patricia Cummings and Carrie Wood of the Conviction Integrity Unit met with my sister and me early in their review to explain what the Conviction Integrity Unit does and to answer any questions we had. 14. During the review of Mr. Ogrod?s conviction by the Conviction Integrity Unit, I met on numerous occasions with Patricia Cummings and Carrie Wood with my lawyer, Ken Trujillo. 15. Patricia Cummings and Carrie Wood came to my home and met with my sister and me when they got the initial opinion about how my Barbara Jean actually died and that she had likely been sexually assaulted. This was extremely painful to learn many years later that what I had been told about what happened to my daughter was not even correct. 16. As the investigation continued my doubts regarding Mr. Ogrod?s guilt continued to grow and I talked to Patricia Cummings and Carrie Wood about those doubts always telling them if Mr. Ogrod was innocent, I wanted to know who the real perpetrator is that killed my Barbara Jean. 17. In late February of this year, I was advised through my lawyer that the District Attorney had concluded that Mr. Ogrod was likely innocent, that his conviction had been illegally obtained and that the office planned to file a court document agreeing that Mr. Ogrod?s conviction should be vacated. 18. The Conviction Integrity Unit provided my attorney with a copy of that document as well as a document that laid out the facts uncovered during the investigation. 19. Based on both my lawyer?s review as well as my own review of the evidence and the investigation into the conviction, I fully supported and continue to support the District Attorney?s conclusion and request to vacate Mr. Ogrod?s conviction. - 20. My review of the evidence-relied on and cited by the District Attorney's of?ce was excruciating. 21. I am sad and angry to find out 32 years later that key evidence was withheld from me, my family and the courts. That evidence more than likely would have kept Mr. Ogrod off death row. 22. I am angry that the person who took my daughter?s life is likely walking free. 23. I am sad to think he may have destroyed other pe0ple?s families. 24. My daughter is never coming home but I wanted justice for her, not simply a closed case with an innocent person in jail. Two families have already been destroyed. 25. There is no question in my mind that Mr. Ogrod is innocent and that he should be released from prison immediately. 26. Keeping Mr. Ogrod in prison does nothing to accomplish my goal ofbringing the person that killed my Barbara lean to justice. 27. Over the past several days I've been advised that Mr. Ogrod is ill and has 28. I believe Mr. Ogrod should have whatever medical treatment he needs and should be released as soon as possible. 29. The possibility that an innocent man might die in jail would only serve to multiply the pain Barbara Jean?s family has suffered. SHARON FAHY